Abstract

Keywords

uBbuntu; sentencing; South Africa; decolonisation; Criminal Procedure Act; colonisation; minimum sentencing; retribution.

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1 Introduction

In 1810 Saartjie Baartman left South Africa for England. She looked forward to making a fortune overseas. Instead she became one of the first South African victims of human trafficking, and once she had died a French museum pickled her brain and genitals. 1

* Windell Nortje. LLB (NWU) LLM (UWC) LLD (UWC). Senior Law Lecturer: University of the Western Cape, South Africa. Email: wnortje@uwc.ac.za. ORCID: https://orcid.org/0000-0001-8033-5537.

1 Saartjie Baartman Centre for Women and Children date unknown http://www.saartjiebaartmancentre.org.za/about-us/saartjie-baartmans-story/.

There have been many amendments to the CPA since the rise of democracy in 1994 and important transformative and decolonial jurisprudence by the Judiciary, but more needs to be done to address the matter. This article focusses on how a more progressive stance on decolonisation in relation to criminal procedure could lead to a more effective system and one that would be appreciated by its citizens. Insufficient academic attention has been given to the decolonisation of the

Law of Criminal Procedure in South Africa. 8

8 For an overview of the literature that has been written on the matter, see generally Xaba Exploring the Principle of uBuntu; Himonga, Taylor and Pope 2013 PELJ; Mokgoro 1998 PELJ.

This paper will examine how the law of criminal procedure could be further decolonised by analysing how the values of ubuntu could be better applied during sentencing proceedings. Sentencing is an aspect of criminal procedure and provides an ideal platform for judicial officers to apply the values of ubuntu. Sentencing is one of the last stages of the criminal justice process and also the most difficult one for judicial officers and offenders alike. It is complex because the life and prospects of the convicted offender at this stage are solely in the hands of the magistrate or judge. The presiding officers wield significant power, which was especially evident prior to the advent of democracy, when judges often passed the death penalty. 11

11 See Magobotiti 2022 Scientia Militaria 104-114.

The article makes an important contribution to the field of law and decolonisation and adds to the current body of literature by focussing primarily on how sentencing practices could be decolonised using the African value of ubuntu. This is important because the South African criminal justice system as a whole still requires significant change if it is to address and eradicate its colonial roots. The article is all the more important as the author is not aware of any prior attempt to address the decolonisation of South African criminal procedure law.

The main research questions which this article examines are (a) to what extent is South African Criminal Procedure colonial, and (b) how can ubuntu be implemented to decolonise sentencing in South Africa? The article is presented in four parts. Firstly, it looks at the concepts of colonisation, decolonisation and ubuntu. It then examines the historical colonial roots of sentencing in South Africa from 1652 up until the enactment of the CPA, the current regime. Thirdly it analyses how ubuntu could be utilised and applied by presiding officers during sentencing. The study concludes by making several recommendations.

2 Conceptualising decolonisation and ubuntu: A South African perspective

2.1 Colonisation versus decolonisation

In order to understand the meaning of decolonisation it is necessary to examine what is meant by colonisation. Apart from its mission to "civilise" and christianise 14

14 Christianisation refers to the spreading of the gospel by the colonisers, and in an African context the gospel was communicated by Westerners to Africans. See Van der Merwe 2016 Stellenbosch Theological Journal 581.

the exploitation of Africa's natural resources and the exploitation of African labour by European capital. Africa became the source of raw materials, the source of cheap labour and also a market for European goods. This exploitation was accompanied by direct political rule and direct oppression and suppression of the people by colonial armies and police. 16

16 Wa Thiong'o Writers in Politics 119.

Colonisation also involves an arbitrary replacement of the conquered people's culture – a calculated exercise. 17

17 Sesanti 2019 JBS 434.

the tools used to colonise the Cape at the time. 18

18 Oliver and Oliver 2017 HTS Theological Studies 4-5. Also see Mudimbe's work on how religious missions fostered colonialism, Mudimbe Invention of Africa 44-97.

Decolonisation, like colonisation, does not have a universal definition. It can be defined as "both a calculated process of military engagement and diplomatic negotiation between the two contending parties: colonial and anticolonial." 20

20 Betts "Decolonization" 23.

that free and decolonised education is one of its non-negotiable pillars. 29

29 Afriforum v Economic Freedom Fighters (EQ 04/2020) [2022] ZAGPJHC 599 (25 August 2022) para 69.

Decolonisation can be considered to be violent in that "the naked truth of decolonisation evokes for us the searing bullets and blood-stained knives which emanate from it." 33

33 Fanon Wretched of the Earth 29-30.

2.2 South Africa in a state of limbo

Scholars such as Ramose and Madlingozi have labelled the South African Constitution colonial and it can only be decolonised if the coloniser's "right of conquest" is terminated. 35

35 Ramose 2007 GLR 321; Madlingozi 2017 Stell LR 140.

terminating this assumed right would begin the process of terminating the bifurcated world because this putative right grounds the colonisers' self-arrogation of the power to draw a line that separates humans from those who

are deemed sub-human; those who have the right to conquer and those who are liable to be conquered; those who form part of the polity and those banished to its underside. 36

36 Madlingozi 2017 Stell LR 140-141.

These arguments also fall within the broader concept of recolonisation, where one country perpetuates and reinstates its former control over another country. 37

37 Horton 2021 The Lancet 1950.

At the height of the COVID-19 pandemic, thousands of people were arrested in South Africa, convicted and sentenced for violating COVID-19 regulations. 43

43 See for example, Lubaale 2020 SACJ 684-706.

to criminal records. 45

45 See Staff Writer 2021 https://businesstech.co.za/news/lifestyle/481707/over-400000-people-have-been-arrested-for-breaking-south-africas-covid-19-rules/.

The Criminal Law Amendment Act 105 of 1997 (the CLAA) provides for minimum sentences, another harsh form of sentencing in South Africa. This reflects a criminal justice system that is focussed on punishment. The author argues that the South African criminal justice system has colonial roots and is sometimes unnecessarily retributive. These colonial roots are apparent in the fact that the South African criminal justice system is solely based on punishing the offender and does not include the community in seeking justice, which would lean more towards an approach consistent with the African value of ubuntu. Subjecting young adults and first-time offenders to minimum sentencing laws and imposing severe penalties and sentences on offenders during the COVID-19 lockdowns showcased the flaws in South Africa's criminal justice system. A restorative approach or an approach steeped in ubuntu should have been adopted. Most of these flaws in the system should have been amended since the advent of democracy, yet 30 years later criminal procedure has not been decolonised fully. Surely, more should have been done to address these concerns by now. In this regard Ramose observes that:

[d]etention without trial is clearly an instance of law working against the protection and recognition of human dignity. This is what we have now with the new dispensation: a law that actively retards the process of justice for the indigenous conquered peoples of South Africa. It is quite ironical that most of the so called negotiators including Mandela himself were trained lawyers, how could they not see that? Seriously ironical. [Cyril] Ramaphosa, lawyer, Matthew Phosa, lawyer, Mandela, lawyer. Where did they study the law, how could they not see? I don't think it makes sense! It just cannot make sense. 48

48 Ramose 2016 PINS 97.

Our country has been in a state of limbo since 1994, like a teenager with an identity crisis - a rainbow nation, colourful yes, but heavily sedated and confused. The author believes that the process to fully decolonise South Africa will be a painstaking one, but one that needs to happen sooner rather than later. It is argued that ubuntu could be the solution, the ultimate way to

eradicate colonialism and its remnants for good – or at least in the realms of criminal procedure.

2.3 The value and philosophy of ubuntu

uBuntu is of significant value in the decolonising project and hence requires a deeper understanding and exploration. It is the foundational value of all Africans. It is a beautiful value and philosophy grounded in compassion and respect for others. Mbiti euphorically defines ubuntu as "I am because we are, and since we are, therefore, I am." 49

49 Mbiti African Religions 141. Also see Etieyibo "uBuntu and the Environment" 635.

Despite the fact that ubuntu is a special African form of community orientation and is located within African traditional communities, 61

61 See Tshoose 2009 AJLS 13.

of our common humanity and the need to care for others. Chief Seattle of the Duwamish and Suquamish tribes in 1854 held that

the earth does not belong to man; man belongs to the earth. This we know. All things are connected like the blood which unites one family. All things are connected. 62

62 Kaiser "Chief Seattle" 527.

Harper Lee, the American novelist who authored To Kill a Mockingbird, wrote:

you never really understand a person until you consider things from his point of view. Until you climb inside of his skin and walk around in it. 63

63 Lee To Kill a Mockingbird 36.

uBuntu refers to community and not solitude. Dr Martin Luther King Jr explained that:

All life is interrelated. We are all caught in an inescapable network of mutuality, tied into a single garment of destiny. Whatever affects one directly, affects all indirectly. 64

64 King Jr 1967 https://soundcloud.com/user-763792570/dr-martin-luther-king-jr-a-christmas-sermon-1967.

uBuntu is truly a global phenomenon, a connection that all humans share, and has been influential in healing transitional societies or at least ensuring relative peace and reconciliation in turmoil, such as in the case in South Africa. 65

65 See Eliastam 2015 Verbum et Ecclesia 1.

The Preamble of the Promotion of National Unity and Reconciliation Act 34 of 1995, the legislation that regulated the South African TRC, states that "there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization." 66

66 Promotion of National Unity and Reconciliation Act 34 of 1995.

The 1993 interim Constitution included the value of ubuntu in its postamble by stating that: 68

68 See Postamble of the Constitution of the Republic of South Africa Act 200 of 1993.

[t]he adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

The Constitution of the Republic of South Africa, 1996 (the Constitution) omits any reference to the word ubuntu. No explanation was provided for the omission. The justification for the exclusion, according to several authors, is that the spirit of ubuntu is captured in various parts of the Constitution including the Preamble, where the words "united in our diversity" and provisions related to the development of customary law can be linked to ubuntu. 69

69 See, for example, Netshitomboni uBuntu 7; Himonga, Taylor and Pope 2013 PELJ 373.

Before we can examine how ubuntu can contribute to decolonising sentencing, an analysis of the colonial roots of criminal procedure and more specifically sentencing in South Africa is apt.

3 Colonial criminal procedure in South Africa

When South Africa became a colony of the Dutch in the 17th century, the indigenous peoples had their own unwritten laws and this included criminal procedure, and more generally, ways to deal with offenders in their communities. 71

71 For a history of criminal procedure in indigenous societies, see generally Maine Early History of Institutions.

3.1 1652-1806

When the Dutch occupied and colonised the Cape in 1652 the Roman-Dutch law system of criminal procedure was introduced. The criminal court structure in the Cape differed from that of the Netherlands as the High Court, located in Cape Town, was known as the Raad van Justisie and had both civil and criminal jurisdiction. 73

73 Dugard South African Criminal Law 18.

of 1570, 75

75 The Ordinance which dealt exclusively with criminal procedure was passed by Philip II of Spain on 9th July 1570.

[t]he early Cape records show that not only the rack, but also the thumbscrew was used for this purpose. The degree of torture seems to have varied. We read of the prisoner being brought into the torture room ad actum proximum. The accused was hoisted up by a rope tied to his hands and suspended by a pulley from the ceiling. Weights were attached to his great toes. These weights varied according to the degree of torture. "Full torture" consisted of 50 lb. weights being suspended from each of the great toes. 80

80 Botha 1915 SALJ 322.

Other sentences included whipping, banishment, branding, dismemberment, imprisonment, fines and the confiscation of property. 81

81 Dugard South African Criminal Law 19.

3.2 1806-1910

With the British occupation in the early 19th century, Roman-Dutch law remained in force in the Cape. The English made a few changes to the court structure, however. 82

82 Lansdown, Hoal and Lansdown South African Criminal Law 7.

established. 88

88 Erasmus 2013 Fundamina 273.

3.3 1910-1977

Before South Africa became a Union in 1910 the South Africa Act, 1909 established the Supreme Court of South Africa. The Highest Court at the time was the Judicial Committee of the Privy Council, the court of final appeal for the UK overseas territories and Crown dependencies, which still exists today. 92

92 For its latest judgments, see the Judicial Committee of the Privy Council date unknown https://www.jcpc.uk/.

This resulted in South Africa’s becoming the highest ranked country in the world in relation to executions, especially during the mid-60s, with 122 prisoners executed in 1966. 100

100 Van Niekerk 1967 Annual Survey 471-472.

3.4 The Criminal Procedure Act 51 of 1977 (the CPA)

The current CPA (or the Act) has been amended 75 times, which indicates how South Africa has attempted to sever the Act from its colonial roots. The abolition of the death penalty in Makwanyane was an important anticolonial change and stressed the significance of ubuntu and human dignity. 101

101 Makwanyane para 149.

A form of neocolonial punishment is the payment of an admission of guilt fine. This fine, which is a form of sentence in South African law, is regulated by section 57 of the Act. The fine can be issued by a police officer or a prosecutor once the accused has admitted that he has committed one of the offences, which are mainly minor offences. 104

104 See s 57 of the CPA.

The accused are sometimes not informed that the payment of the fine will result in a conviction and criminal record. In S v Parsons the Court held that the police officer had not informed the accused that an admission of the commission of the offence in question, namely disturbing the peace, would result in a conviction and criminal record. 107

107 See S v Parsons 2013 1 SACR 38 (WCC). Also see Van As and Erasmus 2020 SACQ 59. For other cases involving the payment of admission of guilt fines, see NGJ Trading Stores (Pty) Ltd v Guerreiro 1974 4 SA 738 (A); S v Gilgannon (040/2013) [2013] ZAGPJHC 226 (29 August 2013); S v Karan 2019 2 SACR 334 (WCC).

a duty on every police officer to inform the accused of all the consequences of the payment of these fines. 108

108 S v Parsons 2013 1 SACR 38 (WCC) paras 4-5.

Sentencing is regulated in general under Chapter 28 of the Act as well as the CLAA. Life imprisonment is currently the most severe sentence after the abolition of the death penalty in 1995. 109

109 Section 276(1)(b) of the CPA.

Former Justice of the Constitutional Court, Judge Edwin Cameron, who opposes life sentences and minimum sentencing legislation explains that:

[t]he major response to the crime wave in our country should be to recognise that the sole inhibiting institutional response to criminal conduct is the certainty of detection, the certainty of follow up, the certainty of arraignment, the certainty of prosecution – and the certainty of punishment. In this certainty, the length of sentence plays no role. In other words, whether a potential rapist faces a sentence of 2, 5, 10 years or life, it is not the length of sentence but the certainty of sentencing that will make them stop. 116

116 Cameron 2020 SACQ 7.

These statements by Cameron are insightful and underscore how the length of a sentence should not be regarded as the holy grail. It is more about the South African Police Service arresting suspects and the National Prosecuting Authority (NPA) ensuring that offenders are successfully charged and prosecuted. The majority of people, 117

117 See generally Makwanyane paras 87-89.

It is clear from the above that the CPA has not been fully decolonised. This is the Act that lecturers teach to young legal scholars at universities, that police officers must enforce, that prosecutors must enforce, and that Judges must interpret on a daily basis. The CPA simply cannot remain colonial in nature.

Apart from the CPA, various other Acts of parliament and provisions also form part of the South African criminal procedure regime and must be read in conjunction with the Criminal Procedure Act. 122

122 See, for example, the Criminal Law Amendment Act 105 of 1997 (CLAA) and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

3.5 Minimum sentencing legislation

South African legislators, including the Dutch and British colonial rulers, have on several occasions limited the discretion of judicial officials. The South African laws at material times were subordinate to the parent laws in either the Netherlands or Britain as the relevant colonial powers. Section 1 of the Cattle Theft Repression Act 16 of 1864 compelled judges to impose a minimum sentence of three years for the theft of sheep and cattle. 124

124 See Farlam 2003 Fundamina 2.

led to an enormous surge in the number of prisoners in the Cape at the time and forced the legislature to pass a Bill granting more discretion to judges. 125

125 Farlam 2003 Fundamina 2.

Moreover, the CLAA initially provided that minimum sentencing legislation was applicable to children between the ages of 16 and 18. 132

132 Section 51(6) of CLAA.

public were in favour of the death penalty. 135

135 Makwanyane para 87.

Minimum sentences have now been applied in our courts for over 25 years and the consequences are dire, because just as in 1864, the prisons have as a result started to become more and more overcrowded. 139

139 See Cameron 2020 SACQ 3. Also see Goliath 2022 Obiter 787.

Yet what is the role of the Constitution in interpreting the Law of Criminal Procedure? Section 39(2) of the Constitution provides that "when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights." When it comes to statutory interpretation, presiding officers are not bound by what statutory law provides but by what the Constitution, as the supreme law, provides. 142

142 Centre for Child Law para 107.

be abolished if challenges to colonial laws are not brought to court, or when parliament continues to rule that retributive and neo-colonial laws such as the minimum sentencing laws are legitimate. It is therefore important for civil society and other role players to challenge any laws that are colonial and overly retributive. This will ensure that the courts have the opportunity to measure these laws against the Constitution and determine whether they are within the spirit, purport and objects of the Bill of Rights. 144

144 See Currie and De Waal Bill of Rights Handbook 148.

4 Applying ubuntu in sentencing proceedings

This section of the paper analyses the use of or failure to use ubuntu by South African courts. Since the word ubuntu does not appear in the Constitution or any other law applicable in our courts on a daily basis, it is left to the discretion of the judiciary to apply ubuntu in sentencing proceedings.

4.1 Ubuntu jurisprudence

The landmark case involving the applicability of ubuntu in sentencing proceedings remains the case where the Constitutional Court abolished one of the most severe colonial sentences in the history of South Africa, the death penalty. In S v Makwanyane the court held that:

[g]enerally, ubuntu translates as ‘humaneness’. In its most fundamental sense it translates as personhood and ‘morality’. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises a respect for human dignity, marking a shift from confrontation to conciliation. In South Africa ubuntu has become a notion with particular resonance in the building of a democracy. It is part of our rainbow heritage, though it might have operated and still operates differently in diverse community settings. In the Western cultural heritage, respect and the value for life, manifested in the all-embracing concepts of ‘humanity’ and ‘menswaardigheid’, are also highly prized. It is values like these that [s 39(1)(a)] requires to be promoted. They give meaning and texture to the principles of a society based on freedom and equality. 145

145 Makwanyane para 308.

uBuntu also permeates other areas of the law including civil litigation. The Constitutional Court in MEC for Education: KwaZulu Natal v Pillay declared unconstitutional a school's decision to force a pupil to remove her nose stud

which she wore in accordance with Hindu tradition. 146

146 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC) paras 4-5.

cultural identity is one of the most important parts of a person's identity precisely because it flows from belonging to a community and not from personal choice or achievement. And belonging involves more than simple association; it includes participation and expression of the community's practices and traditions. 147

147 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC) para 53.

uBuntu has also featured prominently in cases involving socio-economic rights. The Constitutional Court in Port Elizabeth Municipality v Various Occupiers dealt with an eviction order and held that ubuntu

combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern. 148

148 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 37. Also see City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 SA 104 (CC) para 38; Currie and De Waal Bill of Rights Handbook 590.

During the 2020 lockdown the courts also added important judgments regarding religious gatherings and how important it is to apply the value and ideals of ubuntu in these matters. 149

149 Mohamed v President of the Republic of South Africa 2020 5 SA 553 (GP) para 63. Also see Moela v Habib (Gauteng Division, Johannesburg) (unreported) case number 2020/9215 of 23 March 2020 para 60.

These references to ubuntu speak about the South Africa we all dream of and where we are truly one. uBuntu focusses on healing instead of revenge, unity instead of division, building up and not breaking down, respect and not tyranny. This is the power of ubuntu in criminal and civil proceedings, and which led eventually to the decision that the death penalty was not a sentence fit for a new South Africa. However, the imposition of minimum sentencing legislation and other colonial sentences has left offenders stranded and without hope in a country that apparently lives by the spirit of

ubuntu. A sentenced offender cannot develop and achieve his full potential if the justice system leaves him to his own devices and with a lack of support from the community and the judiciary. 153

153 See, for example, Gyekye "Person and Community in African Thought" 321.

4.2 Exclusion of ubuntu from criminal proceedings

Although ubuntu featured in the postamble of the 1993 Constitution, the inclusion of ubuntu in post-apartheid jurisprudence, especially in the field of criminal procedure, is scant. 154

154 Cornell and Van Marle 2005 AHRLJ 196.

In a recent sentencing judgment, where the Southern Circuit High Court sentenced a serial murderer to multiple life imprisonment terms, Judge Wille started his judgment by referring to the following sentencing guidelines and how sentencing is approached in South Africa:

[s]entencing often requires more thought and consideration than is traditionally given to this very difficult process. Sentencing involves a very delicate balancing act, taking into account, inter alia, the seriousness of the offences perpetrated by the offender, the offender's personal circumstances and the vested interests of society. This is often referred to as the triad in Zinn. The imposing of sentence on an offender, therefore of necessity, requires an evaluative and objective analysis of a number of difficult and differing factors. 158

158 S v Mudyiwayana (CC17/2020) [2022] ZAWCHC 23 (2 March 2022) (S v Mudyiwayana) para 1.

In S v Mudyiwayana the court concluded the judgment by explaining the importance of deterrence and retribution and that rehabilitation or a reformative sentencing approach would not be applicable in this case since the offender is not a "fallen angel". 159

159 S v Mudyiwayana para 45.

sentenced the accused to life without parole, a brutal sentence which is not included in the CPA. The author is not blind to the fact that this offender is a dangerous person and should not be walking in our streets. However, the tone of the judgment is severely retributive and lacks the conciliatory tone and reference to comity included in Makwanyane. 161

161 See for example Makwanyane para 230.

While Wille J in S v Mudyiwayana clearly applied a retributive form of punishment on the offender, it is worth noting how he referred to reformative and rehabilitative sentencing, which are generally known as restorative justice. In S v Matyityi Ponnan J held that "restorative justice seeks to emphasise that a crime is more than the breaking of the law or offending against the State - it is an injury or wrong done to another person." 162

162 S v Matyityi 2011 1 SACR 40 para 16-17. Also see S v Jantjies (CC42/20) [2022] ZAWCHC 200 (6 October 2022) para 7.

Punishment is foreign to the indigenous justice system, as it seeks the outcome of a prisoner of shame instead of an offender who is imprisoned. 165

165 Keevy 2009 JJS 29. See Ntlapo uBuntu Justice 70.

In S v Gordon 170

170 S v Gordon (171298) [2018] ZAWCHC 106 (29 August 2018).

the attitude of the Magistrate leaves a disconcerting revelation of a lack of knowledge or appreciation of his constitutional obligations. The principle of Ubuntu which is at the core of being and defines Africa, is simply absent. Nothing on the record gave any hope that the Magistrate played his crucial role of giving content and meaning to the rights of an unrepresented accused. 171

171 S v Gordon (171298) [2018] ZAWCHC 106 (29 August 2018) para 16.

What is promising in the S v Gordon case is that the high court judge called the magistrate out and explained the importance of ubuntu in our justice system. In King v De Jager, which dealt with a succession matter, the Constitutional Court in general terms "affirmed ubuntu as a principle in our law which should inform all forms of adjudication." 172

172 King v De Jager 2021 4 SA 1 (CC) para 237.

5 Conclusions and recommendations

uBuntu has become the Cinderella of South African criminal procedure. This study has shown that there has been a reluctance among criminal court judges to apply ubuntu on a regular basis. 173

173 See section 4.2 of this article.

included in the Constitution as a stand-alone fundamental value. In addition, the author submits that the inclusion of ubuntu in the Constitution and in legislation that is relevant to sentencing would enhance the enforcement of this value and the ability of the public to hold the judiciary accountable for the development of ubuntu as a fundamental value. It should be applied not only by a handful of judges but should become the norm, especially during sentencing proceedings. It should be customary for a presiding officer to interpret ubuntu and to connect ubuntu to the spirit, purport and objects of the Bill of Rights.

In the light of this critical analysis of the implementation of ubuntu in the South African Law of Criminal Procedure, the following recommendations are made:

(a) It is submitted that the defence should be more conscious of making representations for the consideration of ubuntu during sentencing. Legal Aid South Africa and the Legal Practice Council should look at holding workshops for defence counsels throughout the country focussing on the implementation of ubuntu in sentencing.

(b) While the inclusion of informal mediation at the NPA over the last few decades should be praised, 178

178 See NPA 2020 https://www.npa.gov.za/sites/default/files/New%20NPA% 20Strategic%20Plan%202020_2025.pdf 54.

(c) The Department of Justice (when exercising oversight over magistrates) and the Judicial Service Commission (in its oversight role over judges) should include questions about ubuntu and its relation to the law of criminal procedure when interviewing candidates.

(d) The admission of guilt fines should be reviewed and it is submitted that criminal records for such admissions should be expunged, even if certain conditions have to be imposed for qualifying for the said expungement. Moreover, the minimum sentences legislation should be repealed and should have no place in our law.

(e) There is a need to create a pathway for change by instituting regular national dialogues on punishment and ubuntu since law reform is not a one-size-fits-all solution to the problem.

Presiding officers should have the freedom to pass sentences that are fair to both the community and the offender, while at the same time promoting ubuntu as a fundamental value. uBuntu knows no boundaries and can

transform our criminal procedure, which will not only improve the lives of offenders but also the security of society at large.

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Hlatshwayo MN and Alexander I "'We've been Taught to Understand that We don't have Anything to Contribute towards Knowledge': Exploring Academics' Understanding of Decolonising Curricula in Higher Education" 2017 Journal of Education 44-59

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Le Roux-Kemp and Horne 2011 SACJ

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Lee To Kill a Mockingbird

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Case law

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Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC)

Centre for Child Law v Minister for Justice and Constitutional Development 2009 11 BCLR 1105 (CC)

Certification of the Constitution of the Republic of South Africa, 1996 1996 10 BCLR 1253 (CC)

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 SA 104 (CC)

Director of Public Prosecutions, Gauteng v Pistorius 2016 1 SACR 431 (SCA)

King v De Jager 2021 4 SA 1 (CC)

MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC)

Moela v Habib (Gauteng Division, Johannesburg) (unreported) case number 2020/9215 of 23 March 2020

Mohamed v President of the Republic of South Africa 2020 5 SA 553 (GP)

NGJ Trading Stores (Pty) Ltd v Guerreiro 1974 4 SA 738 (A)

Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC)

S v Bull 2001 2 SACR 681 (SCA)

S v Dodo 2001 3 SA 382 (CC)

S v Gilgannon (040/2013) [2013] ZAGPJHC 226 (29 August 2013)

S v Gordon (171298) [2018] ZAWCHC 106 (29 August 2018)

S v Jantjies (CC42/20) [2022] ZAWCHC 200 (6 October 2022)

S v Karan 2019 2 SACR 334 (WCC)

S v Makwanyane 1995 3 SA 391 (CC)

S v Malgas 2001 3 All SA 220 (A)

S v Matyityi 2011 1 SACR 40 (SCA)

S v Mhlakaza 1997 2 All SA 185 (A)

S v Mncube (Judgment on Sentence) (CCP42/2021) [2023] ZAKZPHC 16 (17 February 2023)

S v Mudyiwayana (CC17/2020) [2022] ZAWCHC 23 (2 March 2022)

S v Parsons 2013 1 SACR 38 (WCC)

S v Robertson (CC 4112020) [2022] ZAWCHC 104 (18 May 2022)

S v T 1997 1 SACR 496 (SCA)

Legislation

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Correctional Services Act 111 of 1998

Constitution of the Republic of South Africa Act 200 of 1993

Constitution of the Republic of South Africa, 1996

Criminal Law Amendment Act 105 of 1997

Criminal Law (Sentencing) Amendment Act 38 of 2007

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Criminal Procedure and Evidence Act 31 of 1917

Criminal Procedure Act 56 of 1955

Criminal Procedure Act 51 of 1977

Judicial Service Commission Act 9 of 1994

Promotion of National Unity and Reconciliation Act 34 of 1995

South Africa Act, 1909

Government publications

GN R865 in GG 35802 of 18 October 2012

International instruments

Declaration on the Granting of Independence to Colonial Countries and Peoples UN Doc A/RES/1514(XV) (1960)

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News24 2014 https://www.news24.com/News24/oscar-has-lost-everything-roux-20141017-2

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NPA 2020 https://www.npa.gov.za/sites/default/files/New%20NPA%20 Strategic%20Plan%202020_2025.pdf

National Prosecuting Authority 2020 Strategic Plan 2020-2025 https://www.npa.gov.za/sites/default/files/New%20NPA%20Strategic%20Plan%202020_2025.pdf accessed 14 January 2023

Saartjie Baartman Centre for Women and Children date unknown http://www.saartjiebaartmancentre.org.za/about-us/saartjie-baartmans-story/

Saartjie Baartman Centre for Women and Children date unknown Saartjie (Sarah) Baartman's Story http://www.saartjiebaartmancentre.org.za/about-us/saartjie-baartmans-story/ accessed 6 November 2022

Staff Writer 2021 https://businesstech.co.za/news/lifestyle/481707/over-400000-people-have-been-arrested-for-breaking-south-africas-covid-19-rules/

Staff Writer 2021 Over 400,000 People have been Arrested for Breaking South Africa's Covid-19 Rules https://businesstech.co.za/news/lifestyle/ 481707/over-400000-people-have-been-arrested-for-breaking-south-africas-covid-19-rules/ accessed 15 October 2023

TRC 1998 https://www.justice.gov.za/trc/report/

Truth and Reconciliation Commission 1998 Report. Volume Three https://www.justice.gov.za/trc/report/ accessed 15 October 2023

List of Abbreviations